TOHIARIKI v NEW ZEALAND POLICE [2019] NZHC 303

TOHIARIKI v NEW ZEALAND POLICE [2019] NZHC 303 [28 February 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000131[2019] NZHC 303BETWEEN MAUI TOHIARIKIAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2019Appearances: T Aickin for AppellantK A Courteney for RespondentJudgment: 28 February 2019ORAL JUDGMENT OF GENDALL JIntroduction[1] On 2 August 2018 Judge Hastings in the District Court found the appellantMaui Tohiariki guilty on one charge of male assaults female and one charge ofbreaching a protection order. Mr Tohiariki appeals against both convictions.Facts[2] Turning to the background facts in this matter, Mr Tohiariki and thecomplainant, Ms Q, had been in an "on and off" relationship for approximately fouryears prior to the alleged offending.[3] On 2 December 2017 Mr Tohiariki and the complainant were at New BrightonBeach with their son and other members of the complainant's family. Mr Tohiarikispent most of this time in the water with his son, while the complainant sat on thebeach and drank six Smirnoff vodka RTDs. Mr Tohiariki said he saw the complainantthrowing cans on the beach while she was drinking, which he considered inappropriatewith families and children in the vicinity. The complainant and Mr Tohiariki agreedthat Mr Tohiariki was not drinking.[4] The complainant and Mr Tohiariki got into an argument it appears about theresults of the complainant's recent pregnancy and STD tests. Mr Tohiariki then walkedoff back to where his car was parked. The complainant gave evidence that he returnedto the beach, asking her for his phone. She said she told him that she never had hisphone. She said Mr Tohiariki responded that if he gets back to the car and his phone'snot there, she should "watch out when [she] gets home 'cos looks at [her] house".[5] The complainant followed him back to his car as he walked back to it.Mr Tohiariki then got into the driver's seat and the complainant got into the passengerseat. The complainant gave evidence that she saw her house key on his key ring andreached to grab it which caused them both to start struggling with each other. She saidshe moved onto her knees to reach for the keys and that he then bit her. She saidduring this, the rear-view mirror came off the windscreen and as she left the car sheused the mirror to smash one of the car's windows. The complainant admitted thatshe initially lied to police that Mr Tohiariki had hit her with the mirror. Mr Tohiarikigave evidence that during the struggling he was merely responding to her attack whichconsisted of her hitting him, scratching his face, grabbing his hair and putting herelbow on his throat. He said that while she had her arm pressed against his throat hebit it and he also accepted that he bit her one further time on the back.Principles on appeal[6] Turning now to the principles to be applied on appeal, s 232 of the CriminalProcedure Act 2011 provides that the High Court may only allow an appeal againstconviction if is satisfied that the trial Judge "erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any reason." A miscarriage of justice meansany error, irregularity, or occurrence in or in relation to the trial that has created a realrisk that the outcome of the trial was affected, or, has resulted in an unfair trial.1 Inthis section, a trial includes a proceeding in which the appellant pleaded guilty.2District Court decision[7] Turning now to the District Court decision, there Judge Hastings noted thatthere were issues with the complainant's evidence because she was intoxicated at thetime of the incident and she had admitted to lying to police on three issues in relationto the incident. His Honour noted the initial lies were only retracted when thecomplainant was confronted by police about the inconsistencies between her accountand other evidence.[8] His Honour also recognised that there were problems with Mr Tohiariki'sevidence which lay in internal inconsistencies and consistency with the physicalevidence of the photographs. The Judge first said he could not see how thecomplainant could have had "one arm on [his] throat, one arm trying to hit him and begrabbing his hair while at the same time reaching for the keys in the ignition", as wasMr Tohiariki's evidence. His Honour also found that the defendant had other optionsavailable to him instead of biting the complainant. He could have got out of the caror possibly restrained her hands. Further, Judge Hastings found it implausible that the1 Section 232(4).2 Section 232(5).complainant's arm would have been on Mr Tohiariki's throat when he bit it, becausethe bite mark was located at the back of the upper part of the arm.[9] Because Judge Hastings also found that the physical evidence showed that thecomplainant's arm could not have been against Mr Tohiariki's throat at the time he bitit, His Honour found that he was not in fact acting in self-defence which was thedefence Mr Tohiariki had endeavoured to advance. His Honour also found that in anyevent, the force used was not reasonable in the circumstances as believed to be byMr Tohiariki.SubmissionsAppellant's submissions[10] Turning now to the submissions advanced on this appeal, Ms Aickin, counselfor the appellant, Mr Tohiariki, submitted that Judge Hastings made a number of errorsin assessing the evidence at trial such that a miscarriage of justice has occurred here.[11] Ms Aickin contends first that Judge Hastings placed too much weight on thecomplainant's evidence because she was intoxicated at the time of the incident and hasadmitted to lying on multiple issues to the police. Counsel also submits his Honourmisunderstood Mr Tohiariki's evidence by concluding that he was saying that thecomplainant had one arm on his throat, one arm trying to hit him and be grabbing hishair while also reaching for the keys.[12] Further, Ms Aickin submits the Judge erred in not taking into account thecomplainant's smashing of the car window with the mirror when assessingMr Tohiariki's perception of the circumstances. She submits this shows thecomplainant was in a volatile and unpredictable state, while also being intoxicated,which would support Mr Tohiariki's claim that he was protecting himself and actingsolely in self-defence. Ms Aickin also submits that the Judge erred in finding thatMr Tohiariki had other options available to him, because the issue is not whether therewere other options but whether the course of action actually taken was necessary inthe circumstances to defend himself. She says that in any event, exiting the car wasnot an option available to Mr Tohiariki because he was in a confined space in thedriver's seat with his seatbelt fastened, and was under attack from the complainant.[13] Ms Aickin submits the Judge could not be sure beyond reasonable doubt thatthe second bite (on the complainant's back) was inflicted by Mr Tohiariki becauseneither the complainant nor Mr Tohiariki remembered the bite being inflicted and nomedical evidence was called at trial to establish this.Respondent's submissions[14] Turning now to the respondent's submissions, Ms Courteney for the policesubmitted that given the biting was agreed to have occurred, Judge Hastings wasentitled to conclude that the prosecution had proved the assault beyond reasonabledoubt, and that the issue then became whether Mr Tohiariki's acts were done in self-defence. She went on to submit that it was open to the Judge to find that Mr Tohiarikiwas not acting in self-defence because he failed to take any other option available tohim that would have avoided the need to bite the complainant. Ms Courteney finallyargues that His Honour was not required to consider the fact that the complainantsmashed the passenger window after Mr Tohiariki bit her, as it was not relevant to hisstate of mind when she was in the car struggling with him.Analysis[15] Turning now to my analysis of these matters, as to the weight given to thecomplainant's evidence, I am satisfied that Judge Hastings was fully aware of the risksassociated with relying on her evidence. His Honour expressly acknowledged thatthere were problems with her evidence, pointing to her intoxication and her admittedlies to the police.3 However, his Honour was required to weigh this with the otherphysical evidence which was present and against what he saw as problems withMr Tohiariki's evidence. Ultimately though, his Honour did not solely rely on thecomplainant's evidence in reaching his evidential conclusions. The Judge found thatthe physical evidence corroborated the complainant's evidence while directlycontradicting aspects of Mr Tohiariki's account. This is altogether different from3 Police v Tohiariki [2018] NZDC 21696 at [8].allegations that the complainant's evidence was troubled by her propensity to lie andher being intoxicated, which can only amount to a risk that her evidence is unreliable.The Judge's reliance on the physical evidence too is an appropriate way of dealingwith what are said to be inconsistencies in the evidence and there is nothing to suggesthis Honour placed "undue" weight here on the complainant's evidence. Evidence ofthe bite mark on the complainant's arm was clear and both she and the appellant agreedin evidence that the biting had occurred.[16] In relation to whether Judge Hastings should have placed more weight on thecomplainant's smashing of the car window as showing her volatile, unpredictable, andintoxicated state at the time of the incident, in my view, Ms Aickin is wrong to say thatthe Judge erred in not explicitly referring to it. The smashing of the window occurredafter the biting, so while it may be relevant to some extent, it occurred after the fact.It would appear that the Judge considered there were other aspects of thecircumstances that had greater relevance to the question of whether Mr Tohiariki wasacting in self-defence and whether the force he used was reasonable in thosecircumstances.[17] Finally, on the question of whether the availability of alternative options isrelevant to whether someone acts in self-defence or not, it is also wrong to submit thisis entirely irrelevant. In Vincent v R the Court of Appeal held that where the dangercan otherwise be averted, recourse should be had to other means of avoidance.4 Thisdoes not imply a "duty of retreat",5 and in some cases escape from a situation will notbe considered the reasonable option, for example where the aggressor is using aweapon and is aggressive, hostile and unpredictable.6 However, the starting point, asset out in Vincent, is that the availability of an alternative that involves no or lessharmful use of force is directly relevant to whether the force actually used in a self-defence situation was reasonable. Thus, I am satisfied here Judge Hastings did not errin concluding that self-defence was not made out. I reach that conclusion in part dueto what were real options open to Mr Tohiariki at the time of either leaving the car or4 Vincent v R [2015] NZCA 201 at [29].5 See R v Savage [1991] 3 NZLR 155 (CA) at 158.6 See Dixon v Police HC Palmerston North HP5/86, 13 February 1986.restraining the complainant's hands. These options were not utilised by Mr Tohiariki,however, when they were clearly open to him.Conclusion[18] In conclusion, for all the reasons I have outlined above, I am satisfiedJudge Hastings made no error in his assessment of the evidence and therefore nomiscarriage of justice has occurred here. This appeal is dismissed....................................................Gendall JSolicitors:Trudi Aickin, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch